Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 982 (JHR)

Sarju Dusadh v. State of Jharkhand

2004-09-22

N.N.TIWARI, SUDHANSU JYOTI MUKHOPADHAYA

body2004
JUDGMENT N.N. Tiwari, J.-Both these appeals arise out of the same judgment and, therefore, both these appeals have been heard together and are being disposed of by this common judgment. 2. The appellants of both the appeals have been convicted under Section 396 IPC and each of them has been sentenced to undergo R.I. for life. 3. The prosecution was launched on the basis of the fardbeyan dated 1.11.97 given by Rupbanti Devi PW-2. The prosecution case in brief was that in the previous night, after taking meal, she was sleeping with her husband and her daughter Pushpa Kumari in the inner room of the west facing house. The door of the room was closed. On hearing the sound of beating of winnowing fan (Soap), she got up (as it is a customary ritual observed in the next following morning of Deepawali night) and she came out of the house but did not find anybody outside. The time was about 12 P.M. She then closed the door and returned to her bed. After 15 minutes she heard sound of knocking at her outer door and thereafter somebody called her husband by name and asked him to open the door. The informant and her husband suspecting the arrival of terrorists hid themselves in the inner room. After sometimes the miscreants broke open the door with the help of Sabat threatening that her husband has connived in getting Lalua arrested and they will not spare him. The terrorist had then broke open the door of main gate connecting the courtyard Angan and 5-6 of them entered into the room where her husband was hiding. Then they caught hold of him and assaulted. Thereafter they took her husband out and also removed Rs.2,000/- from her husband's 'Bandi' (Jacket) and a watch from the room. The informant followed them and begged before the terrorists to leave her husband, but they turned deaf ears and hit her by butt of the gun. The terrorists were 15-20 in number and were clad in Khaki uniform and variously armed with weapons. The terrorists thereafter took her husband to the nearby culvert and assaulted him till he became unconscious, muttering that the arrest of Lalua could be possible due to his connivance. The informant who was still following them was asked by the terrorist to give her husband hot water to drink, lest he would die. The terrorists thereafter took her husband to the nearby culvert and assaulted him till he became unconscious, muttering that the arrest of Lalua could be possible due to his connivance. The informant who was still following them was asked by the terrorist to give her husband hot water to drink, lest he would die. Thereafter the informant with the help of her nephew Baleshwar Pd. Yadav, Hirdayanand Yadav and her daughter brought her husband home and applied paste of lime and turmeric on the injuries and also gave Desi Ghee to drink. At about 5 A.M. in the next morning her husband died. She claimed to have identified the appellant Anil Ram, Lalman Ram @ Lalan Ram, Sarju Dusadh and Laxman Baitha amongst the said terrorists in the electric bulb light. According to the informant, the motive of the occurrence was to wreak vengeance of the arrest of Lalu Ram which according to the terrorists could be possible with the connivance of her husband. 4. On the said fardbeyan the police registered a case under Section 396 IPC and started investigation after completion of the investigation, a charge sheet was submitted against the appellants. The appellants denied the charges. The appellants were then put on trial. Thirteen witnesses were examined on behalf of the prosecution. PW-1 Chandrakesh Prasad Yadav proved the inquest report (Ext. 1 ). PW-2 Rupbanti Devi (informant) tried to support her statement given in the fardbeyan, but there are contradictions in the statements regarding the motive and the source of light and inode of identification. In the fardbeyan she had stated that she identified the appellants in the light of electric bulb but in paragraph 5 of her deposition she deviated from the same and stated that Lantern was burning and electric bulb was also on and' she identified in that light. PW-3 Sanjay Kr. Yadav is a formal witness who proved signature on the inquest report. PW-4 is Pushpa Kumari, daughter of the informant. In paragraph 1 of her deposition she specifically stated that she identified the appellants in the light of the Lantern. She also said that it was a moonlit night. However, she did not name the persons who entered inside the house. PW-5 Ram Pyare Chandrabanshi stated in his evidence that on the date of the occurrence he heard screaming and shouting and got up but out of fear did not go out. She also said that it was a moonlit night. However, she did not name the persons who entered inside the house. PW-5 Ram Pyare Chandrabanshi stated in his evidence that on the date of the occurrence he heard screaming and shouting and got up but out of fear did not go out. The sound was coming from the house of Baijnath Babu. In the morning he went there and saw the dead body of Baijnath. He was informed by the inmates that terrorists murdered him. PW-6 Ramdeo Pd. Yadav is an agnatic relation of the deceased Baijnath. He deposed that in the morning the police came and recorded the fardbeyan and he put his signature on the same. He stated that nobody told the names of the terrorists to him. PW-7 Hirdayanand Yadav stated that he heard the sound of weeping and shouting in the night near culvert. When he followed the sound, he saw that Baijnath Yadav is lying in injured condition. He then with the help of others brought Baijnath home and thereafter he died. In the morning the police came and seized the broken lock and wooden latches (Bera) and prepared seizure list in his presence. He also proved the seizure list (Ext.3). He has stated that the village is extremists infested. PW-8 Brijbilas Singh proved the charge sheet (ExtA). He has taken charge of the case when the investigation was complete on all points. He there submitted charge sheet (Ext. 4). PW-9 Baleshwar Pd. Yadav is the FIR witness. In Paragraph 4he has stated that the village is extremists infested but they come from outside. PW-1 a Kunj Bihari Pd. Jaiswal only stated that he saw the dead body of Baijnath with injury of Lathi. PW-11 Akshaibar Baitha stated that Baijnath Yadav was murdered by the Naxalites and that one Salimji is the leader of the Naxalites. He also stated that he has not seen the occurrence. PW-12 Dr. Braj Kishore Mundari conducted postmortem examination on the dead body of the deceased Baijnath. He proved the postmortem examination report (Ext.5). Referring the same he stated that he found as many as 12 antemortem injuries on the person of the deceased. He opined that the death was caused due to shock and haemorrhage resulting from antemortem injuries. He also found stomach of the deceased empty. PW-13 Gurudayal Ram is the I.O. He proved the FIR (Ext.6). Referring the same he stated that he found as many as 12 antemortem injuries on the person of the deceased. He opined that the death was caused due to shock and haemorrhage resulting from antemortem injuries. He also found stomach of the deceased empty. PW-13 Gurudayal Ram is the I.O. He proved the FIR (Ext.6). He has stated that he has found the doors broken. While referring the contents of the FIR he has stated that he had not seized the cloth from which Rs.2,000/- was taken away. He also stated that he had not inquired whether there was electric connection in the house of the informant. 5. Mr. P.P.N. Roy, learned counsel appearing on behalf of the appellants, urged that there is no credible evidence to establish the charge against the appellants and they have been erroneously convicted and sentenced by the Court below. According to the learned counsel there are vital contradictions in the evidences of so called eye-witnesses PW-2 and PW-4. PW-4 is the daughter of PW-2. There is no other evidence to corroborate their testimony. There is also a shifting of the motive. The witnesses have admitted enmity between the appellants and the deceased. The story has been developed from stage to stage. The genesis of the occurrence is also doubtful. The witnesses have not taken the name of the appellants. PW-6, who is a neighbour, has stated that when he went to see the dead body of Baijnath, nobody named the appellants. According to the learned counsel the source of light and mode of identification are also seriously doubtful. In the FIR it was alleged that they identified the appellants in the light of the electric bulb but in the depositions the witnesses have stated that they identified the appellants in the light of Lantern. In order to make the case more strong the PW-4, who is the daughter of the deceased, stated that it was a moonlit night, but admittedly the date of occurrence was the night after the Deepawali which is one of the darkest nights. Learned counsel submitted that the appellants are all cultivators and they have no criminal antecedent. The appellants have been charged for the offence under Section 396 IPC but the ingredients of the said Section are not present in this case. Learned counsel submitted that the appellants are all cultivators and they have no criminal antecedent. The appellants have been charged for the offence under Section 396 IPC but the ingredients of the said Section are not present in this case. There is no allegation of theft or removal of any article except an allegation of taking away Rs.2,000/- kept in 'Bandt and that too has not been seized. Learned counsel argued that all the appellants are co-villagers and it is not believable that they would commit robbery in light without covering their faces. Mr. Roy emphatically submitted that there had been no proper examination under Section 313 Cr. PC. and the circumstances appearing in evidence have not been put to the accused and the appellants could not be able to explain the same. According to Mr. Roy, the conviction and sentence passed on such circumstances which were not explained to the appellants while recording their statement under Section 313 Cr. P.C., are not sustainable in law. The learned counsel relied on the decisions reported in AIR 1984 S.C. 1622 (Sharad Birdhichand Sarda vs. State of Maharashtra) and 2002(8) Supreme Today 672 [: 2002(3) JLJR (SC) 198] (Nirmal Pasi & Anr. vs. State of Bihar). Fortifying his argument on the basis of the said decisions of the Supreme Court, the learned counsel submitted that there are contradictory versions of the witnesses in the Court regarding the sources of light in which the appellants are said to be identified. The same are also different from the statement made in the fardbeyan. But no questions regarding the same were put to the accused appellants giving them opportunity to explain the same. According to the learned counsel no such identification can be relied upon for holding the appellants guilty. No question was framed and put to the appellants regarding the shifting circumstances of their identification which has been believed and used by the learned Sessions Judge against the appellants. Mr. Roy submitted that in this case PW-2 and PW-4, mother and daughter, are the only material witnesses and their evidences are required to be scrutinized with care and caution as they are interested witnesses in view of the admitted enmity with the appellants. Mr. Roy submitted that in this case PW-2 and PW-4, mother and daughter, are the only material witnesses and their evidences are required to be scrutinized with care and caution as they are interested witnesses in view of the admitted enmity with the appellants. Citing the said decision reported in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (supra), he submitted that the Supreme Court has held that the close relatives of the victim have tendency to exaggerate or add the facts and the same requires careful scrutiny. According to Mr. Roy, there is absolutely no corroboration of the statements of PW-2 and PW-4 by any independent evidence and as such the same is not at all reliable. Mr. Roy concluded that the Court below has committed serious errors in convicting and sentencing the appellants in such doubtful circumstances. 6. Having heard the learned counsel for the appellants and perused the evidences and materials on record, we find that there is much substance in the submissions made by the learned counsel. Admittedly the appellants are the co-villagers of the informant and the deceased. There are evidences of enmity between them. PW-2 the informant (wife of the deceased) and PW-4 (daughter of the deceased) are the witnesses of the alleged occurrence. Earlier it was stated by the witness that they identified the appellants in electric light. But in the Court they deviated from their earlier statement regarding the source of light and claimed that they identified the appellants in the light of a Lantern. In such circumstance the testimony of the said material witness becomes doubtful. There is no other corroboration by any independent witness or materials on record. There are shifting statements regarding the motive. In the fardbeyan it has been stated that the extremists wanted to take revenge from the deceased as they suspected his connivance in getting Lalua, one of the extremists, arrested. In the evidence stage the witnesses changed their version and admitted past enmity. It appears from the record that the informant did not spell the name of these appellants when the co-villager PW-6 Ramdeo Prasad Yadav came to see the dead body of Baijnath. It is also improbable in ordinary course of nature that the appellants would commit dacoity only for Rs.2,000/- without touching other valuables. The ingredients of Section 396 IPC are also absent in this case. It is also improbable in ordinary course of nature that the appellants would commit dacoity only for Rs.2,000/- without touching other valuables. The ingredients of Section 396 IPC are also absent in this case. No murder was committed during the commission of the dacoity. It has been alleged that the accused persons took away Baijnath near the culvert but they did not kill him rather assaulted him by Lathi and butt of the gun leaving him alive and instructing the informant to treat him immediately to save his life. It appears that there was no intention to commit murder of the deceased. While considering the effect of not putting the circumstances to the accused in their examination under Section 313 Cr. P.C. The Supreme Court considering the earlier decisions reported in AIR 1976 S.C. 557 (Shamu Balu Chaugule vs. State of Maharashtra) and AIR 1979 S.C. 1566 (Harijan Megha Jeshe vs. State of Gujarat) held in Sharad Birdhichand Sarda's case (supra) that the circumstances which were not put to the appellants in their examination under Section 313 Cr.P.C. have to be completely excluded from consideration. In a recent decision rendered in the case of Nirmal Pasi & Am. vs. State of Bihar (supra) it has been held, inter alia, by the Apex Court that purpose of recording the statement under Section 313 Cr. P.C is to enable the accused persons to explain any circumstances appearing in the evidences against them. It has been held : "A piece of incriminating evidence relied on by the prosecution and found proved by the Court so as to rest the conviction of the accused thereon must be put to the accused in his statement under Section 313 of the Cr. P.C. enabling him to offer such explanation as he may choose to do. Unless that is done, the piece of incriminating evidence cannot be relied' on for finding a verdict of guilty. " 7. P.C. enabling him to offer such explanation as he may choose to do. Unless that is done, the piece of incriminating evidence cannot be relied' on for finding a verdict of guilty. " 7. In that view, the above decisions, we find that the prosecution case regarding the mode of commission and identification suffers from serious infirmities and that the trial is defective due to the fact that the relevant piece of incriminating evidences were not put to the accused appellants affording them sufficient opportunity to explain the same in their examination under Section 313 Cr.P.C. In view of the manifest and patent defects and errors of law in assessing the' evidences by the Court below and the circumstances giving rise to the serious doubts, we hold that the prosecution has failed to prove its case against the appellants beyond all reasonable doubts. 8. In the result, we allow both these appeals and set aside the judgment of conviction and order of sentence of the Court below and acquit all the appellants of both the appeals of the charge framed against them and direct their release. The appellants of both the appeals will be set at liberty forthwith. if not wanted in any other case. S. J. Mukhopadhaya, ACJ.-I agree.